OSHA Considers Making Injury Underreporting a Violation

By Roy Maurer
8/19/2014

Permissions

Concerned that a proposed rule that obligates certain employers to publish their injury and illness records might lead to employers misreporting that data, the Occupational Safety and Health Administration (OSHA) has extended the rule’s comment period and is asking for reaction to making such underreporting a violation.

The deadline to comment has been moved to Oct. 14, 2014.

The proposed rule would amend OSHA’s injury and illness reporting requirements by obligating certain employers to submit their injury and illness survey data electronically to OSHA, where it would eventually be posted online for public viewing. The nation’s 38,000 employers with more than 250 employees (that already are required to keep records) would have to submit their data to OSHA on a quarterly basis. The 440,000 companies with more than 20 employees but fewer than 250 that are in certain industries with high injury and illness rates would be required to submit their records to OSHA once a year.

Since the announcement of the proposed rule in November 2013, many stakeholders expressed concern that the proposal could motivate employers to underreport their employees’ injuries and illnesses. Commenters said that the proposed rule could promote an increase in workplace policies and procedures that deter or discourage employees from reporting work-related injuries and illnesses, such as adopting unreasonable reporting requirements and retaliating against employees who do report.

OSHA said it’s concerned that the accuracy of the data collected under the new proposal could be compromised if employers discourage reporting.

The agency is now soliciting comments on whether to amend the proposed rule to:

Require that employers inform their employees of their right to report injuries and illnesses.

More clearly communicate the requirement that any injury and illness reporting requirements established by the employer be reasonable and not unduly burdensome.

Provide OSHA an additional remedy to prohibit employers from taking adverse action against employees for reporting injuries and illnesses.

To that end, OSHA is seeking comment on these specific questions:

Are you aware of situations where employers have discouraged the reporting of injuries and illnesses?

Given the fact that employer injury and illness statistics will be publically available on the Internet, will this cause some employers to discourage their employees from reporting injuries and illnesses?

Are you aware of any studies or reports on practices that discourage injury and illness reporting?

Do you or does your employer currently inform employees of their right to report injuries and illnesses?

Are there any difficulties or barriers an employer might face in trying to provide such information to its employees?

How might an employer best provide this information?

What procedures do you or does your employer have about the time and manner of reporting injuries and illnesses?

Are you aware of any examples of reporting requirements that are unreasonably burdensome and could discourage reporting?

How should OSHA clarify the requirement that reporting requirements be reasonable and not unduly burdensome?

Are you aware of employer practices or policies to take adverse action against persons who report injuries or illnesses?

Are you aware of any particular situations where an employee decided not to report an injury or illness to his or her employer because of a fear that the employer would take adverse action against the employee?

What kinds of adverse actions might lead an employee to decide not to report an injury or illness?

Are there any employer practices that OSHA should explicitly exclude to ensure that employers are able to run an effective workplace safety program?

What other actions can OSHA take to address the issue of employers who discourage employees from reporting work-related injuries and illnesses?

Is the fact that retaliation for reporting workplace injuries and illnesses is illegal communicated in your workplace? How?

What kinds of existing reporting procedures might be prohibited by this new proposed requirement?

What are the costs and benefits of using this rulemaking to address the issue of employers who discourage employees from reporting injuries and illnesses?

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